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2017 DIGILAW 481 (KAR)

Vinatha Madhukar Haldipur v. N. A. Anantaram

2017-02-13

S.N.SATYANARAYANA

body2017
ORDER : 1. The respondent in RCA No. 29/2009, pending on the file of I Addl. Civil Judge, Hubballi, has come up in this revision impugning the concurrent finding rendered by both the Courts below on an application filed by him in I.A. No. 6 under section 43 and (2) of Karnataka Rent Act, 1999, in the said proceedings. 2. The brief facts leading to this HRRP are that the petition for eviction in RCA No. 29/2009 is by the respondent herein claiming himself to be the owner of property bearing CTS No. 457/7, 457/6B and 457/8, situated on Club Road, Hubballi. Admittedly all the three properties are one contiguous unit bound by the schedule as shown in the petition in RCA No. 29/2009 in the trial Court. 3. Admittedly the CTS No. 457/7 is one portion of the entire property where the building with ground and first floor is located and CTS No. 457/6B is outer portion of the same property and CTS No. 457/8 is garage portion of the said property which is together bounded as stated supra. Admittedly the said property was property of one Siddalingappa Bulla and the same was let out by him to Madhukar Haladipur on monthly tenancy in or around 1936-37. 4. The records would disclose that the original owner Siddalingappa Bulla during his lifetime executed a gift deed of aforesaid property in favour of his wife Smt. Pravatevva Bulla which has taken place in the year 1972 and which is not disputed by both the parties in this proceedings. The records would also state that there was an agreement of sale entered into between the original tenant Madhukar Haladipur and donee of the property, who is also wife of the original owner, which is on 17.6.1985. Under the terms of agreement the landlord Smt. Parvatevva Bulla agreed to sell the said property in favour of original tenant Madhukar Haladipur on terms and conditions enumerated in the agreement dated 17.6.1985. 5. The records would further disclose that subsequently Madhukar Haladipur died, his widow and children continued as tenant of the suit property and simultaneously in and around the same time Siddalingappa gifted the properties in favour of his wife Pravatevva and she became the owner and there was an agreement of sale between the said Parvatevva Bulla and the widow and children of Madhular Haladipur which has taken place on 17.6.1985. The said agreement did not get fructified into the sale deed between them, instead, there was a transaction of sale between Smt. Parvatevva Bulla and respondent herein N.A. Anantram, in the landlady selling the petition property in favour of Anantram under registered sale deed dated 17.12.1987. Hence the suit for specific performance was filed by revision petitioners herein which is in O.S. No. 391/1988. 6. The said suit for specific performance resulted in a decree being passed in favour of the petitioners herein by judgment dated 17.3.1998 which was subject matter of an appeal in R.F.A. No. 418/1998 filed by Smt. Parvatevva as the 1st appellant and respondent herein as the 2nd appellant. The said regular first appeal in RFA No. 418/1998 was allowed by judgment dated 18.8.2009 wherein the decree passed for specific performance is set aside and the suit filed seeking aforesaid relief was dismissed. As against that a Special Leave Petition was filed by the appellants herein in SLP No. 37875/2009 wherein an application in I.A. No. 1/2015 was filed seeking condonation of delay in filing of the said SLP which came before the Apex Court on 2.2.2015 and by dismissing the said application, the Special Leave Petition was also dismissed. 7. With this the litigation which commenced for specific performance under agreement dated 17.6.1985 reached finality. Thereafter the proceedings in RCA No. 29/2009 was initiated by the respondent herein claiming himself to be the landlord of suit schedule property having purchased the same from its erstwhile owner Smt. Parvatevva under registered sale deed dated 17.12.1987. In the said petition the appellants herein filed an application in I.A. No. 6 under Section 43(1) and (2) of Karnataka Rent Act, 1999, contending that there is no relationship of landlord and tenant between the petitioner and respondents in RCA No. 29/2009. 8. The said application came to be dismissed by order dated 1.2.2013 which was subject matter of a rent revision in R.R. No. 11/2013 on the file of I Addl. District and Sessions Court, Dharwad, itinerating at Hubballi, which came to be dismissed on 17.7.2013. Thereafter challenging the concurrent finding of both the Courts below in dismissing his application in I.A. No. 6, the present house rent revision petition in HRRP No. 521/2013 is filed by the respondents in RCA No. 29/2009. 9. District and Sessions Court, Dharwad, itinerating at Hubballi, which came to be dismissed on 17.7.2013. Thereafter challenging the concurrent finding of both the Courts below in dismissing his application in I.A. No. 6, the present house rent revision petition in HRRP No. 521/2013 is filed by the respondents in RCA No. 29/2009. 9. The facts leading to filing of I.A. No. 6 by the revision petitioners herein are for the reason that the revision petitioners are agreement holders for purchase of property vide agreement dated 17.6.1985 which is not in dispute. It is also not in dispute that even prior to the agreement of sale entered into between the revision petitioners and previous owner Parvatevva, the revision petitioners were tenants of the petition schedule property. It is only at the time of agreement was entered into, since there was payment of one lakh rupees by the revision petitioners herein towards sale consideration and there was an undertaking to pay another one lakh rupees before next Ugadi falling in the year 1986, they were entitled to continue in the property until sale deed is effected. 10. The learned counsel for the revision petitioners herein tried to rely upon that recital in the agreement to say that he continued to be in the property in part performance of the agreement of sale dated 17.6.1985 and that he has come into possession of the property in part performance of the said agreement. Therefore even if suit for specific performance is rejected, the finding given in I.A. No. 1 on issue No. 1 in O.S. No. 391/1988 would permit him to continue in possession of the property until he is dispossessed in the manner known to law by filing a suit seeking possession not by seeking eviction invoking the provisions of the Karnataka Rent Act. To substantiate that, they tried to rely upon the definition of landlord and tenant as seen in Karnataka Rent Act 1999 in Section 3(e) and Section 3(n), which reads as under. To substantiate that, they tried to rely upon the definition of landlord and tenant as seen in Karnataka Rent Act 1999 in Section 3(e) and Section 3(n), which reads as under. 3(e) "Landlord" means a person who for the time being is receiving or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or to be entitled to receive the rent, if the premises were let to a tenant. 3(n) "Tenant" means any person by whom or on whose account or behalf the rent of any premises, is or but for a special contract would be, payable, and includes:- (i) a sub-tenant. (ii) any person continuing in possession after the termination of his tenancy, but does not include any person to whom a licence as defined in Section 52 of the Indian Easements Act, 1882 (Central Act 5 of 1882) has been granted. (iii) a deserted wife of a tenant who has been or is entitled to be in occupation of the matrimonial home or tenanted premises of husband. (iv) a divorced wife of a tenant who has a decree of divorce in which the right of residence in the matrimonial home or tenanted premises has been incorporated as one of the conditions of the decree of divorce. 11. He also would try to substantiate that since he does not fall within the definition of tenant and he is not recognizing the petitioner in the trial Court as landlord as envisaged under the said Act, what the option available to him is to seek rejection of the petition under Section 43(1) and (2) of the said Act, which reads as under. 43. Dispute of relationship of landlord and tenant - (1) Where in any proceeding before the Court, a contention is raised denying the existence of relationship of landlord and tenant as between the parties it shall be lawful for the Court to accept the document of lease or where there is no document of lease, a receipt of acknowledgement of payment of rent purported to be signed by the landlord as prima facie evidence of relationship and proceed to hear the case. (2) Where:- (a) the lease pleaded is oral and either party denies relationship and no receipt or acknowledgement of payment of rent as referred to in sub-section (1) above is produced. (b) in the opinion of the Court there is reason to suspect the genuine existence of the document of lease or the receipt of acknowledgement of payment of rent. The Court shall at once stop all further proceedings before it and direct the parties to approach a Competent Court of civil jurisdiction for declaration of their rights. 12. He also tried to substantiate his prayer for rejection of the petition in RCA No. 29/2009. While doing so he tried to rely upon two judgments rendered in two different matters which are as under: (a) Joseph Kantharaj and Another v. Attharunnisa Begum S. (2010) 1 Rent LR 251 : (2010) 1 Scale 556 (b) Mahadev v. Rangamma, 2013 (1) KCCR 207 13. When these two judgments are looked into from the fact situation, what could be understood is that the judgment in the matter of Joseph Kantharaj and Another v. Attharunnisa Begum S. (supra), is in the proceedings where the eviction of tenant is in a case where the tenant had entered into agreement for purchase of suit schedule property, since the landlord did not come forward to execute the sale deed, he filed suit for specific performance of agreement and the landlord initiated a proceedings for eviction of the tenant from the suit schedule property. 14. In the said proceedings a plea was taken that until the suit filed by the tenant seeking specific performance is decided, the eviction proceedings initiated by the landlord should be stayed to enable him to secure appropriate decision from the Court on his right to seek specific performance under the agreement of sale. The said contention was accepted by the trial Court, however the same was reversed by the High Court in an appeal and held that both the matters would continue simultaneously. However when the same was taken up in appeal in SLP before the Apex Court, special leave was granted and the same was considered as Civil Appeal and the matter was heard and disposed of holding that the decision of the trial Court in deferring the trial of the suit for eviction till the decision of suit for specific performance is right approach. 15. 15. The said judgment will have no bearing to the case on hand, for the reason, on facts the present position is totally different. In the instant case the eviction proceedings is not initiated until the proceedings initiated by the tenant seeking specific performance reached finality in the Apex Court rejecting his petition and thereafter RCA is initiated. Therefore in the fact situation the said judgment is distinguishable to the facts on hand in the instant case. Therefore the said judgment will have no bearing on the case on hand. 16. Now coming to the second judgment, it is with reference to a litigation where an agreement of sale was entered into by and between the owner of agricultural land and prospective purchaser wherein in part performance under Section 53A of the Transfer of Property Act, the agreement holder was put in possession of the property. However for various reasons the execution of sale deed did not go through and the possession of the property remained with the agreement holder. When the possession of the property was sought to be recovered, the person who was put in possession of the property under Section 53A of the Transfer of Property Act took a specific stand that though his specific performance is lost, his right to continue in possession under Section 53A of the Act remained undisturbed. Therefore either owner or subsequent purchaser can dispossess him by filing a suit and not otherwise. 17. That position is accepted by co-ordinate bench of this Court in the matter of Mahadev v. Rangamma (supra), which appears to be the proper law on that aspect. However in fact the said judgment is also distinguishable to the facts on hand in as much as the possession of the petition schedule property is not delivered to the agreement holder, who is plaintiff in the O.S. No. 391/1988, under Section 53A of the Transfer of Property Act. Therefore the plaintiffs in O.S. No. 391/1988 who are petitioners in this HRRP cannot take shelter under the said provision of law and also this judgment to continue in possession. 18. Now coming to the case on hand, this Court would like to deal with the definition of the provisions of the Karnataka Rent Act. Section 3(e) defines the word landlord and Section 3(n) defines the word tenant as extracted herein above. 18. Now coming to the case on hand, this Court would like to deal with the definition of the provisions of the Karnataka Rent Act. Section 3(e) defines the word landlord and Section 3(n) defines the word tenant as extracted herein above. If the word tenant and landlord are read together, as could be seen supra, landlord is defined as a person entitled to receive rent of any premises or to be entitled to receive the rent if the premises were let to a tenant. Here it only defines his title to be the landlord of the property. 19. Admittedly the petition schedule property in RCA No. 29/2009 was the property of Smt. Parvatevva who was admittedly landlord of petitioners herein until the date they entered into an agreement for sale on 17.6.1985 and the status of petitioners herein was also that of tenant till such time the agreement was entered into. As on the date of agreement, which came into existence, by virtue of certain payments made, certain concessions were shown in the agreement for non-payment of rent. However there was no change in the status in as much as there was no recital in the agreement to state that the possession of the tenant is in part performance of the agreement of sale entered into between the parties on 17.6.1985. In the absence of creating change in status with reference to his possession, he continues as a tenant. That status will continue as long as he is in possession of the said property whether that agreement is in force or not. 20. In the instant case that agreement was subject matter of the suit for specific performance in O.S. No. 391/1988 which has reached finality in SLP No. 37875/2009. When the said suit was pending in the trial Court, an issue was framed with reference to the agreement being valid and held to be in favour of tenant in holding that the agreement is in force. In any event that finding in itself will not entitle him to any benefit unless a supportive relief of specific performance is granted to him in the said suit for specific performance. In any event that finding in itself will not entitle him to any benefit unless a supportive relief of specific performance is granted to him in the said suit for specific performance. In the said suit the relief sought is for specific performance and finding regarding nature of the agreement whether it is valid agreement is held to be proper and binding, is only in aid of the larger relief of specific performance. 21. When once that relief is denied, this finding on issue No. 5 that the execution of agreement is proved in itself will not give any relief to the purchaser either to continue in possession of the property or to seek any other right including a right to seek execution of the sale deed at a later stage. Provided, in the agreement, if provision of Section 53A of the Transfer of Property Act were to be pressed into service and the same is independently established in the trial. Under such circumstances probably it is open for the plaintiff to say that even though specific performance is denied, he shall be allowed to continue in possession of the property, which he has secured in part performance of the agreement of sale where the agreement is held to be valid. 22. In the fact situation that is not the case. The petitioners herein were tenants prior to 17.6.1985, by virtue of some amount was paid as advance, a concession of not paying the rent was shown to them. In any event it was not held that their possession is in part performance of agreement of sale. Therefore they cannot claim that benefit, which they had not claimed in any place either in the original suit in O.S. No. 391/1988 or in RFA No. 418/1998 which was filed by the landlord along with subsequent purchaser. In that view of the matter when agreement of sale has reached finality in SLP No. 37875/2009 being dismissed, he would revert back to the position as it stood prior to 17.6.1985. Therefore he should be considered as tenant now. 23. In this background if the definition of 'landlord' as defined under Section 3(e) of the Karnataka Rent Act 1999 is looked into, the person who has stepped into shoes of Smt. Parvatevva is the landlord of the said property who is entitled to receive the rent of such premises. Therefore he should be considered as tenant now. 23. In this background if the definition of 'landlord' as defined under Section 3(e) of the Karnataka Rent Act 1999 is looked into, the person who has stepped into shoes of Smt. Parvatevva is the landlord of the said property who is entitled to receive the rent of such premises. In the instant case the status of the petitioners herein being reverted back to that of tenant as on 17.6.1985 and the petitioner in RCA No. 29/2009 having stepped into place of original landlord Parvatevva, has become the owner of the petition schedule property, he has every right to seek eviction of the revision petitioner herein from the petition schedule property in RCA No. 29/2009, pending on the file of I Addl. Civil Judge, Hubballi. 24. In that view of the matter this Court hold that, the finding given by both the Courts below on the said application filed under Section 43(1) and (2) of the Karnataka Rent Act, 1999, which is numbered as I.A. No. 6 is just and proper and does not call for interference in this HRRP. Accordingly the same is dismissed. 25. In view of the revision petition being dismissed and proceedings in RCA No. 29/2009 being pending consideration, on merits, the entire records should be sent forthwith to the trial Court and the matter shall be called on the next date of hearing which is given in the said matter before the trial Court.